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Questioning Judicial Nominees: A Duty Not A Privilege; Schumer Outlines Specific Questions Senators Should Ask A Supreme Court Nominee

Major Speech to the Center for American Progress and American Constitution Society Stems from Schumer Op-Ed in 2001

Today U.S. Senator Charles E. Schumer, in a speech to the Center for American Progress and American Constitution Society, outlined the specific questions that can and should be asked of Supreme Court nominees in their confirmation hearings. Schumer, the ranking Democrat on the Judiciary Subcommittee on the Courts, stating that questioning judicial nominees is a duty and not a privilege, first suggested that a nominee’s views and philosophy should be known in an opinion piece in the New York Times in 2001. The specific questions are below as is a complete text of the speech:

Questioning Judicial Nominees: A Duty, Not A Privilege

I would like to thank the Center for American Progress and the American Constitution Society for sponsoring this important event, at this important time, on this important issue.

As speculation swirls about who might replace Sandra Day O’Connor, it is important that we are taking this morning to address a fundamental issue, no matter how many vacancies we may face on the Court.

And that fundamental issue is this – once we have a nominee (or nominees) testifying before the Senate Judiciary Committee, what kinds of questions can be put to that nominee and what kinds of answers should the nominee give?

I have long believed that federal court candidates – who serve for life – should explain their judicial philosophy and their method of legal reasoning.

They should be prepared to explain their views of the Constitution, of decided cases, of federalism, and a host of other issues relevant to that lifetime post. They should talk about their views of the First Amendment, civil rights, environmental rights, religious liberty, the establishment of religion, worker’s rights, women’s rights, and more.

So, this morning, ladies and gentlemen, let me address two points. First, why it is good and proper to ask a nominee detailed questions about his or her views of the Constitution and substantive issues.

And second, what questions I personally would ask any nominee to the Supreme Court.

First, why should Senators ask – and why should nominees answer – searching questions about judicial philosophy?

Why? Because it is the single most important thing we can learn about a Justice who will serve for life.

The Supreme Court has a profound impact on people’s lives, and the influence of a single Justice can far outlast that of a President.

With just the stroke of the pen, a Justice can affect – for good or ill – millions of people’s lives in dozens of fundamental ways:

-One Supreme Court decision can mean the difference between equality of opportunity and second-class citizenship for generations. Just look at Brown v. Board of Education.
- One Supreme Court decision can mean the difference between profit and bankruptcy for a class of businesses. Just look at the Grokster case (file-sharing case) or Granholm v. Heald (wine distribution cases).
- One Supreme Court decision can mean the difference between life and death for criminal defendants. Just look at Atkins v. Virginia (mentally retarded) or Roper v. Simmons (juveniles).
- One decision can mean the difference between a home and homelessness; between a job and the unemployment line; between clean air and a fouled-up planet.
- And of course, as we have seen, just one vote by one Justice in one case can mean the difference between a Democrat or a Republican in the White House. Just look at Bush v. Gore.

Because of the momentousness of all that the high Court considers, we simply cannot and should not avoid delving into judicial philosophy.

As I discussed in a 2001 Op Ed in the New York Times, there is no question that all good lawyers and judges interpret the law, that there is some subjectivity in that interpretation, and that one’s values and philosophy influence that process.

Professor Cass Sunstein did an interesting study and found – somewhat unsurprisingly – that in ideologically contested cases, appointees tended to vote more conservatively or more liberally depending on the party of the president who appointed them.

For all these reasons, this process should not be a rote and robotic review of a resume.

There are many people who boast impressive resumes and academic credentials, but who would misserve the American people from the bench, because of their extremist views, misguided judicial philosophy, or disrespect for the Constitution.

A good resume is important, but not dispositive. It is a necessary, but certainly not sufficient, prerequisite for serving in a lifetime post on the most powerful court in the land.

The American people care less about whether a nominee went to Utah Law School or Harvard Law School and more about how he or she will affect their lives.

Indeed, close consideration of a Supreme Court nominee’s judicial philosophy, ideology, and views on substantive issues has a rich and long tradition in American history – even before nominees routinely appeared in person before a Judiciary Committee to answer questions.

During the 1950's and early 1960's, there were not a lot of questions about nominees’ views and ideology, in part because there was more good will and consensus in the country. But from the beginning of the Republic, everyone has understood that these kinds of questions were vitally important. In the 1795 when President George Washington nominated John Rutledge to be Chief Justice of the Supreme Court, he was defeated not because of some personal foible – not because he smoked opium as a teenager or failed to pay his nanny tax to the British – but because of his views of the Jay Treaty.

And – this is notable – his opposition was led by Alexander Hamilton, who was the originator of the Advice and Consent procedure.

Over the course of American history, fully 20 percent of all nominees to the high court have never been seated – in many cases because of their ideology and judicial philosophy.

Ideological examination has been a feature of the nomination process forever – but often that ideological questioning goes on furtively behind closed doors by members of the party that proposed the nominee.

Justice O’Connor, for example, was questioned by the Reagan White House at length on her views – in private. As reported in the New York Times in 1981, in a closed-door session, she was asked specific questions by Reagan officials – including, among other things, “whom she felt she was closest to on the Court philosophically [and] her opinions on the exclusionary rule, under which evidence that is obtained unconstitutionally is deemed inadmissible in court.”

And that kind of closed-door questioning appears not to be a thing of the past. As reported this week, Senator Sam Brownback, a member of the Judiciary Committee, has asked to meet with Attorney General Alberto Gonzales, who has been mentioned as a possible Supreme Court nominee.

Asked whether Gonzales would be a good nominee, Brownback replied, “I need to talk with him about his view of the Constitution to tell. That’s what I hope to do this week.”

If a nominee’s ideology, judicial philosophy, constitutional views are central considerations in a President’s decision to nominate (as they inevitably are) and if such questioning is going on in private, I dare say that the American people have an absolute right to have those questions answered publicly.

Now, let me just review the breadth of support – from all quarters – for the proposition that questions about judicial philosophy and decided cases are fair game for nominees to the highest court in the land.

Let me begin with the letter being released today in conjunction with this event – a letter signed by 100 leading legal scholars, which really hits the nail on the head. Let me quote a passage from that letter:

“[I]t is critical that the Senate, in giving its Advice and Consent, undertake a searching inquiry to assure itself that judicial nominees meet the highest standards of character and integrity. . . and that their views are within the constitutional mainstream.”

That is exactly right. But these 100 scholars are not alone. If people cared to look, there is support from many quarters for the proposition that questioning nominees about their views and ideology is vitally important:

1. Arlen Specter, the Chairman of the Senate Judiciary Committee, agrees with this proposition. This is what he wrote in his 2000 book, Passion for Truth: “[T]he Senate should resist, if not refuse, to confirm Supreme Court nominees who refuse to answer questions on fundamental issues. In voting on whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate’s philosophy, but should be able to judge on the basis of the candidate's expressed views.”

2. Senator John Cornyn – himself mentioned as a potential Supreme Court nominee and also a member of the Judiciary Committee – also agrees with this proposition. When pressed on television last week, Senator Cornyn conceded:

“I think it's an appropriate question to ask what [nominees’] views are on cases that have been decided and judicial opinions that have been written.”

3. Senator Orrin Hatch – former Chairman of the Judiciary Committee – also has agreed with this proposition because he has understood that judicial philosophy is so important:

“[D]ifferences in judicial philosophy have real consequences for the safety of Americans in their streets, homes, and workplaces.” (1996)

Senator Hatch has himself also repeatedly asked nominees about their views. He pressed Ruth Bader Ginsburg on, among other things, her views on the death penalty. [Senate Judiciary Cmte. Hearing, 7/22/93]

4. On Tuesday, even President Bush endorsed this proposition when he talked about the importance of philosophy in picking a Supreme Court nominee:

“I am going to be deliberate in the process because I want the American people to know that, when I finally make a decision, it’s going to be one based upon a lot of research and a lot of thought about the character of the person, the integrity of the person, the ability of the person to do the job, and the philosophy of the person.”

5. Even the current Supreme Court agrees with the proposition that nominees to the Supreme Court will naturally have – and express – opinions on the legal issues of the day. In Republican Party of Minnesota v. White (2002), the Court made clear that questions about constitutional views and decided questions are completely proper.

Listen to Justice Scalia in 2002 quoting Justice Rehnquist in 1972:

“Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”

In all, this is an impressive group in support of this simple proposition.

Logic and legal precedent confirm what Senators, scholars, and Supreme Court Justices all agree upon – that questions about judicial philosophy are legitimate and proper.

Ideology matters, judicial philosophy matters, and questions about them are not only appropriate, but obligatory.

And yet, despite tradition, despite Supreme Court precedent, despite logic and reason, there are those who insist that such questioning is inappropriate, unnecessary, unseemly, and even unethical.

But, given the importance of the issue and the profound influence of the Supreme Court, I think the American people join me in scratching their heads at those who still question whether we should ask these kinds of questions.

Every time I look at the arguments, I become more and more perplexed. Do opponents of questioning about ideology really even believe their own arguments?

Perhaps those who are seeking to avoid asking these key questions are doing so because they fear – or know – that the answers the nominee gives may be so out of touch with the views and values of the American people that the nominee – if his or her views were public – might never be approved.

Legendary law professor and civil rights champion Charles Black wrote in the Yale Law Journal 35 years ago words that would resonate today. He wrote eloquently and persuasively about the importance of knowing a nominee’s philosophy:

“If it is a philosophy the Senator thinks will make a judge whose service on the Bench will hurt the country, then the Senator can do right only by treating this judgment of his, unencumbered by deference to the President’s, as a satisfactory basis in itself for a negative vote.

I have seen as yet nothing textual, nothing structural, nothing prudential, nothing historical, that tells against this view. Will someone please enlighten me?”

Thirty-five years later, I could ask the same question. Will someone please enlighten me?

Some have argued that questioning a nominee about his or her views of the Constitution or about decided cases compels prejudgment about a future case. They say that somehow asking a nominee about an old case or their judicial philosophy means they will not be able to be impartial if a similar issue ever comes up in their court in the future. They even cite the canons of judicial ethics in support of this argument.

But I am not talking about asking a nominee to tell us in advance how they are going to rule on a specific fact situation or issue in a potential upcoming case.

- One should not ask a question specifically about Enron, because there are particular facts and parties involved, but one can certainly ask a question about a nominee’s views on corporate responsibility and the proper role of the federal Government in enforcing it.
- One should not ask about drilling in a particular oil field in Alaska, but one can certainly inquire about the proper Constitutional role of the federal government in balancing environmental interests against energy interests.
- One should not ask about how the Patriot Act should be applied to a specific individual, but one can certainly inquire about the limits of liberty in a time of war.

A dozen leading legal ethicists confirmed in a letter to me last week that there is nothing inappropriate with Senators’ asking questions about Constitutional issues. Relying on Justice Scalia’s opinion in White, these professors wrote:

“It is hardly possible that a person could achieve nomination for appointment to the United States Supreme Court and yet have no opinions about the significant constitutional issues and cases of our day. And the fact that the nominee does have such opinions and voices them will not undermine impartiality or the appearance of impartiality.”

So, I wonder about the motives of the opponents of this type of questioning. What is their rationale? What is their reasoning?

It is getting clearer and clearer: some want a nominee so out of the mainstream that they want to hide the candidate’s views from the American people. They are afraid that if a nominee provided his or her honest views of the Constitution and of the way it should be interpreted, they would never be confirmed.

Ladies and gentlemen, that is inimical to our tradition and incompatible with our principles.

What I support, what my fellow Senators support, and what these 100 scholars support, is a dignified and respectful hearing process – open, fair, thorough, full, and above-board:

-a hearing process dominated by direct questioning about substantive Constitutional issues, rather than nitpicking about personal peccadilloes;
- a hearing process that casts light on the nominee’s judicial views, rather than generates heat about their personal lives;
- a hearing process that lets the American people understand the kind of Justice they are getting.

To do this, Senate questioners have certain ethical obligations – to treat the nominee with respect and to avoid the kind of gotcha questions that debase the proceedings.

On the other hand, the nominee also has certain obligations – to answer questions fully and honestly, without prevarication or equivocation; to provide relevant opinions and writings to the committee, without delay; and to

Miguel Estrada, nominated by President Bush to the D.C. Circuit Court of Appeals, was defeated because he was neither forthright in his answers, nor forthcoming with his writings. He may have been a brilliant legal mind, with a stellar resume, but his stubborn evasion and dissembling about his judicial philosophy and his legal views spelled disaster for his nomination.

Let me now set forth some of the questions that I personally would ask a Supreme Court nominee. This is neither a comprehensive nor obligatory list. I may not ask all of these questions and I may ask many others not listed here, but these questions form a groundwork, I think, for proper examination of a candidate for the highest court in the land.

Some of my questions are similar to the 10 proposed in the letter from 100 legal scholars being released today. I may not ask all of the same 10 questions proposed in the letter, but I will certainly ask many of them. And every one of the questions proposed is appropriate for a Senator to ask.


1. First Amendment and Freedom of Expression: What, if any, are the limitations on the freedoms guaranteed by the First Amendment to the Constitution?
- When can Government regulate public speech by individuals?
- When does speech cross the line between Constitutionally-protected free expression and slander?
- In what ways does the First Amendment protect the spending and raising of money by individuals in politics?
- Can Government regulate hate speech? What about sexually explicit materials?
- Do you agree with the landmark decision in NY Times v. Sullivan (1964), which held that public criticism of public figures is acceptable unless motivated by actual malice? Who do you believe constitutes a public figure under this standard?
- Do you believe the Supreme Court was correct to strike down the Communications Decency Act in Reno v. ACLU (1997) on the grounds that pornography on the Internet is protected by the First Amendment?
- What is your view on the distinction the Supreme Court drew in Republican Party v. White and McConnell v. FEC (2003) between contributions and expenditures in the course of political campaigns? Do you believe that it is legitimate to construe campaign expenditures as protected speech but not donations by individuals?

2. First Amendment and the Establishment Clause:
- Under the Establishment Clause, what, if any, is the appropriate role of religion in Government?
- Must the Government avoid involvement with religion as a whole, or is the prohibition just on Government involvement with a specific religion?
- Is there a difference between religious expression in Government buildings, documents, and institutions and Government spending on private, faith-based initiatives?
- What do you see as the Constitutionally protected or limited role of faith-based groups in Government-funded activity? In Government institutions?
- In the two cases the Supreme Court decided on the Ten Commandments recently, a display of the Commandments inside a Courthouse was found unconstitutional, while a statue of the Commandments on the grounds of a state capitol was deemed acceptable. Do you agree with the distinction the Court drew between Van Orden v. Perry and McCreary Country v. ACLU (2005)? In your view, are these decisions consistent with each other?
- What is your view of the Supreme Court's opinion in Santa Fe Independent School District v. Doe (2000), which held that prayer in public schools is prohibited even where it is student-organized, non-denominational, and at a football game?
- Do you agree that states can regulate activities at religious ceremonies, as the Supreme Court held in allowing Oregon to prohibit the use of peyote for Native American tribal ceremonies in Employment Division v. Smith (1990)?

3. Commerce Clause: Beginning in 1937, when it upheld the National Labor Relations Act, the Supreme Court has granted Congress great latitude in passing laws under the Commerce Clause. The Court has upheld a wide range of federal laws, including those that regulate labor standards, personal consumption of produce, racial discrimination in public accommodations, and crime. In the last ten years, however, the Supreme Court has shifted course, doing something it had not done in sixty years: striking down acts of Congress on Commerce Clause grounds.
- Do you think the trend towards striking down laws on this basis is desirable?
- What do you believe is the extent of Congress’s authority to legislate under the Commerce Clause?
- Can Congress regulate local trade in a product that is used nationally?
- Can Congress regulate labor standards for states and cities under its Commerce Clause power?
- How closely connected must the regulated action be to interstate commerce for Congress to have the authority to legislate?
- Where would you look for evidence that Congress is properly legislating under its Commerce Clause authority? Do you rely exclusively on the text of the legislation? Do you look at the legislative history? Do you consider the nature of the regulated activity?
- What is the extent of the limitations imposed on state regulation by the Commerce Clause?
- Do you agree that it is the Commerce Clause that allows Congress to prohibit racial discrimination in public accommodations, as the Court held in Heart of Atlanta Hotel v. United States (1964)?
- Do you agree with the Court’s decision in United States v. Lopez (1995), which struck down the Gun-Free School Zone Act because education is traditionally local? Is there any circumstance under which Congress could regulate activities in schools using its Commerce Clause authority?

4. Under what circumstances is it appropriate for the Supreme Court to overturn a well-settled precedent, upon which Americans have come to rely?
- Does your answer depend at all on the length of time that the precedent has been on the books?
- Does your answer depend at all on how widely criticized or accepted the precedent is?
- What if you agree with the result but believe the legal reasoning was seriously flawed? Does that make a difference?
- Does it matter if the precedent was 5-4 in deciding whether to overturn it? Does it matter if was a unanimous decision?
- Do you agree with the 1976 decision in which the Supreme Court held that Congress could not extend the Fair Labor Standards Act to state and city employees (National League of Cities v. Usery), or do you agree with the later 1985 decision, which held that Congress could (Garcia v. San Antonio Metropolitan Transit, overruling Nat’l League of Cities). Was the Court right to overturn its precedent nine years later? Why or why not?
- Do you agree with the 1989 decision in which the Supreme Court held that it was constitutional to execute minors (Stanford v. Kentucky), or do you agree with the later 2005 decision, which held that it was unconstitutional (Roper v. Simmons). Was the Court right to overturn its precedent 16 years later? Why or why not?
- Do you agree with the 1986 decision in which the Supreme Court held that states could criminalize private sex acts between consenting adults (Bowers v. Hardwick), or do you agree with the later 2003 decision, which held that the states could not (Lawrence v. Texas)? Was the Court right to overturn its precedent 17 years later? Why or why not?

5. Under what circumstances should the Supreme Court invalidate a law duly passed by the Congress?
- What amount of deference should the court give to Congressional action?
- Should the Court err on the side of upholding a law?
- Do certain types of laws deserve greater deference than others? Regulatory laws? Criminal laws?
- How closely tied must a law be to an enumerated right of Congress under Article I for it to be upheld?
Let me ask you about a few cases in which the Supreme Court has struck down federal laws:
- Do you agree with the Supreme Court’s decision to strike down the Gun-Free School Zones Act at issue in United States v. Lopez (1995)? Why or why not?
- Do you agree with the Supreme Court’s decision to strike down provisions of the Violence Against Women Act in United States v. Morrison (2000)? Why or why not?

6. Is there a constitutionally protected right to privacy, and if so, under what circumstances does it apply?
- The word “privacy” is not mentioned anywhere in the Constitution. In your view, does that mean it is wrong for the Supreme Court to interpret the Constitution as conferring such a right?
- Do you believe that either the United States Congress or the states can regulate the sexual behavior of individuals within the privacy of their home?
- Do you agree with the reasoning in Griswold v. Connecticut (1965), which held that the Constitution protects the right to privacy in the bedroom?
- Do you believe that Roe v. Wade (1973) was correctly decided? What is your view of the quality of the legal reasoning in that case? Do you believe that it reached the right result?
- Once the right to privacy has been found – as in Griswold and Roe – under what circumstances should the Supreme Court revisit that right?

7. What is the proper role of the federal government in enacting laws to protect the environment?
- Under the Constitution, how far can Congress go in imposing restrictions on people and businesses to protect the air and water?
- How should Congress balance the interests of industry against environmental interests?
- How far can the states go in enacting laws to protect the environment, and does it matter whether there is federal legislation on the same subject?
- Let me put this in the context of a specific case: Do you believe that the Supreme Court correctly decided that the EPA has the authority to pursue industrial polluters in a state where the local authority has declined to do so, as in Alaska Department of Environmental Conservation v. EPA (2004)?
- Can the Clean Air Act preempt local emissions regulations, as the Court held in Engine Manufacturers Association v. South Coast Air Quality Management (2004)?

8. What is the proper role of the federal government in enacting laws to protect the rights of the disabled?
- How should Congress balance the costs to business against the government’s interest in creating equal access to facilities for disabled persons?
- Should federal laws mandating access to buildings for disabled people apply to both public and private buildings?
- For example, do you believe that the Americans with Disabilities Act requires state buildings to be accessible to the disabled, as the Supreme Court held in Tennessee v. Lane, or do you think that sovereign immunity exempts the states?

9. What is the proper relationship between Congress and the states in enacting laws to protect the rights of patients?
- For example, do you believe federal legislation can preempt state court laws that allow people to sue negligent insurers, as the Supreme Court held in Aetna Health Inc. v. Davila (2004)?

10. What is the proper Constitutional role of Government in enacting laws to regulate education?
- How far can the Government go under the Constitution to ensure equal treatment for all students?
- How far can the Court go to protect speech and/or prohibit violations of the establishment clause in the schools? For example, do you believe that Santa Fe Independent School Dist. v. Doe (2000) was decided correctly?
- Does the Constitution guarantee parents the right to choose their children’s education, as established in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925)?

11. How do you define judicial activism? Give us three examples of Supreme Court cases that you consider the product of judicial activism.
- Is the “activist” label limited to more liberal-leaning judges, or can there be conservative activist judges? Can you cite any examples of conservative judicial activism?
- In cases where federal law and state law may be in conflict, who is the activist – the judge who voted to strike down the federal law or the judge who invalidated the state law?
- Do you believe that the Supreme Court was engaging in judicial activism when it struck down provisions of the Gun-Free School Zones Act (United States v. Lopez) or the Violence Against Women Act (United States v. Morrison), both of which had been passed by Congress?
- Was the Supreme Court engaging in judicial activism in:
Brown v. Board of Education?
Miranda v. Arizona?
Dred Scott v. Sandford?
The Civil Rights Cases of 1883?
Lochner v. New York?
Furman v. Georgia?
Bush v. Gore?
- What distinguishes one case from the other?

12. Do you describe yourself as falling into any particular school of judicial philosophy?
- What is your view of “strict constructionism”?
- What is your view of the notion of “original intent”? “Original meaning”?
- How do you square the notion of respecting “original intent” with the acceptance of the institution of slavery at the time the Constitution was adopted?

13. What in your view are the limits on the scope of Congress' power under the Equal Protection and Due Process clauses of the 14th Amendment?
- Does a law violate the Equal Protection Clause if it affects different groups differently, or must there be a discriminatory intent?
- Do parents have a Due Process right to make decisions concerning the care, custody, and control of their children, as the Supreme Court held in Troxel v. Granville (2000)?

14. Where is the line between civil rights questions that are political and questions that are appropriate for a court to decide?
- Do you agree with the reasoning in Powell v. McCormack? Why or why not?
- Do you agree with the reasoning in Baker v. Carr? Why or why not?
- Do you agree with the reasoning in Bush v. Gore? Why or why not? What power does the Supreme Court have to intervene in state election laws (as in Bush v. Gore)?
- What role should the Supreme Court be playing in disputed elections?

15. Which Supreme Court Justice do you believe your jurisprudence most closely resembles and why?

16. When the Supreme Court issues non-unanimous opinions, Justice Scalia and Justice Ginsburg frequently find themselves in disagreement with each other. Do you more frequently agree with Justice Scalia's opinions, or Justice Ginsburg's?

17. Can you identify three Supreme Court cases that have not been reversed where you are critical of the Court's holding or reasoning and discuss the reasons for your criticism?

These are just a dozen or so topic areas that are ripe for inquiry for any Supreme Court nominee. There are hundreds more.

The sheer number of substantive areas of legitimate and important questioning is staggering. It underscores why the Supreme Court is so important, why the hearings are so central, and why these questions are so vital.

And the answers to each and every one of these questions could have a profound effect on the daily lives of hundreds of thousands, if not millions, of people. That’s why asking these questions is not a whim, not a political game, not even a privilege, but the solemn obligation of the Senate to the country.


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